Putting a
public face
on the bar
Each of my initiatives — Working
Families, Consumer Law and Justice for
All — has a strong public component.
That’s intentional. While we can accomplish a great deal as lawyers, and especially as a bar association, our message only
gets stronger when we bring in others to
stand with us.
We’ve seen it already in the Massachusetts Bar Association’s Workplace Safety
Task Force, where we assembled a multiindustry coalition of dedicated lawyers,
business and political leaders who helped
push through a workers’ rights bill that
had failed to pass nine times previously.
The MBA’s “12 for 12” program,
which I wrote about last month, is also
based on this kind of collaborative premise. Inviting our non-lawyer clients to advocate with us for increased court funding
and legal aid amplifies our message on
Beacon Hill. As “12 for 12” continues into
the spring, just imagine the impact that
lawyers and the public will make together
when state legislators receive hundreds if
not thousands of calls, emails and letters
from both lawyers and their non-lawyer
constituents.
The relationship between lawyers and
the public is arguably our most important
partnership. Members of the public are not
only legal consumers (as clients); they can
also be our allies in our push for access
to justice for all. I believe we must continue to take affirmative steps to foster this
collaborative relationship and move away
from the “us versus them” perception that
so often permeates public discourse about
our profession.
Connecting with the media is one way
to change this perception. At the MBA,
we are already thought of as the place to
turn for legal experts. Reporters frequently
call upon our leaders to offer legal commentary or insight; just take a look each
month at the Notable and Quotable section
in Lawyers Journal. We’re making a positive impression each time we become part
of the public discussion.
We’re also looking for ways to get out
our own stories, as well, and video will
play a major part of it. Not only is video
one of the most popular means of communication, but our reach with video is immeasurable.
This month on Massbar.org I launched
2
my first video column about our

Four years ago a medical school graduate in Louisiana embarked on the trip
of a lifetime with her brother. As a graduation present,
their father took them to the
World Cup in South Africa,
the global soccer championship which takes place
every four years. But what
started as the trip of a lifetime suddenly turned tragic.
The two siblings were
unfortunately the victims
of a terrible hit-and-run accident. The med school student was killed in the crash
and her brother slipped into
a coma. Estimates put the
cost of bringing the deceased sister and her broth-

er home at $300,000.
Back home in Louisiana, the sister of the med
school student was a lawyer
in Baton Rouge. As word of
the tragedy spread, the legal
community pitched in to
help through the SOLACE
program, an email-based
network of legal professionals interested in helping other members of
the legal “family.”
A message was sent
out to SOLACE members asking if anyone
had any contacts in

Governor files
FY15 budget
recommendations

Gov. Deval L. Patrick filed his budget recommendations for
the fiscal year 2015 on Jan. 22. Patrick recommends funding the
Trial Court at $617.5 million, which is slightly more than the Trial
Court’s maintenance request of $615.1. The additional funding
would cover the costs of expanding specialty courts and the judicial compensation increase that was enacted last year.
Patrick’s Massachusetts Legal Assistance Corporation
(MLAC) budget recommendation was $14 million. While it is a
$1 million increase over fiscal year 2014 funding, it is $3 million
below MLAC’s current $17 million request for civil legal aid.
The House and Senate will take up their own versions of the
budget in April and May respectively. ■

the medical evacuation or
transportation industry that
could assist the family. Just
18 minutes later an email
response came from a law
school professor who had
a brother that was the head
of medical evacuations at
Ochsner Hospital in New
Orleans.
Free of charge, the hospital dispatched a team
of five doctors to South

Africa who brought the
med school student and her
brother home to Louisiana.
Amidst a horrific situation,
the family finally had some
sense of relief and it was
the local legal community
that helped make it happen.
8

Lawyers and judges
‘Walk to the Hill’ for
civil legal aid funding

More than 500 lawyers participated in the 15th annual Walk to the Hill for
Civil Legal Aid in the Great Hall of the State House on Jan. 30

More than 500 lawyers participated in the 15th annual Walk
to the Hill for Civil Legal Aid in the Great Hall of the State
House on Jan. 30. The Massachusetts Bar Association, the
Equal Justice Coalition (EJC) and the Boston Bar Association
asked participants to urge their legislators to support increased
state funding for civil legal aid.
The event took place one week after Gov. Deval L. Patrick
recommended $14 million for the Massachusetts Legal Assistance Corporation (MLAC) in his fiscal year 2015 budget
19
proposal. MLAC, which is the largest single funding

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

2
PRESIDENT’S VIEW

Continued from page 1
“12 for 12” program, where I addressed why it is imperative that
our clients and other members of the public join us in our call to
state legislators to increase funding for the courts and legal aid programs in Massachusetts. This is an incredibly important message.
Now with video, it’s one we can share in many places — and I
encourage you to share it with your clients and friends.
This is the first of several video “columns” that I will use to
address timely topics of interest to both lawyers and non-lawyers.
Our Consumer Advocacy Task Force is also working with MBA
staff on ways to use video to bolster the useful, consumer-focused
content on our website.
As the largest statewide bar association in the commonwealth,
we have the unique ability to be a go-to resource for the public.
Our public outreach efforts, including video, will provide answers
and point people in the right direction — often to one of our own

community-based programs or Lawyer Referral Service.
Equally important, it will help put a face on our good work,
showing us as the caretakers we are, and showcasing the MBA as
the place to be and the people to go to when someone needs a
lawyer.
On a final note, I cannot speak about the face of the MBA without recognizing the person who has been one of our most visible
and respected leaders — Chief Legal Counsel and Chief Operating
Officer Martin W. Healy. For 25 years, as of this month, Marty has
used his talents as a spokesman and coalition-builder to solidify
the MBA’s status as the preeminent voice of the legal profession on
Beacon Hill and around the commonwealth.
Please join me in congratulating Marty — our colleague, and
my good friend — on reaching this quarter-century milestone at the
MBA. Thank you, Marty, for your service. ■

On Wednesday, Jan. 15, the Massachusetts Bar Association’s Lawyer Referral Service (LRS) department participated in
a training offered by the Samaritans. Kelley Cunningham, manager of Community Education and Outreach was invited to
present to the LRS staff about best practices in speaking with, and handling calls and questions from people who are dealing
with difficult issues and experiences. ■

Materials not to be reproduced without permission.
Lawyers Journal (ISSN 1524-1823) is published monthly by
the Massachusetts Bar Association, 20 West St, Boston, MA
02111-1204. Periodicals postage paid at Boston, MA 02205.
Postmaster: send address changes to Lawyers Journal, 20
West St., Boston, MA 02111-1204.
Subscription rate for members is $20, which is included in the
dues. U.S. subscription rate to non-members is $30. Single
copies are $3.
Telephone numbers: editorial (617) 338-0680;
general MBA (617) 338-0500.
Email address: lawjournal@massbar.org.
Readers are invited to express their opinions as letters to
the editor and op-ed commentaries. All submissions are
subject to editing for length and content. Submit letters and
commentaries to: Editor, Lawyers Journal, at the address
given above or via email to lawjournal@massbar.org,
or fax to (617) 542-7947.

A publication of the Massachusetts Bar Association

THE WARREN GROUP

Standing from left to right: Nancy Yulfo, LRS/public service representative; Joseph Caci, LRS and public/community service marketing manager; Natasha Mathis,
LRS intern; Elizabeth O’Neil, director of community and public services; Amy Osborne, LRS and public/community service assistant; Claudia Staten, LRS and public
service manager; Shanice Douglas, LRS/public service representative; and Kelley Cunningham, Samaritans community education and outreach manager.

News from the Courts
Trial Court names director of
research and planning and
communications manager
Chief Justice of the Trial Court Paula M. Carey and
Court Administrator Harry Spence have announced the
appointment of Linda K. Holt, director of research and
planning, and Jennifer L. Bruni, communications manager.
The Trial Court formed the Department of Research
& Planning/Sentencing Commission to facilitate a system-wide approach to research needs and applications.
Holt will head the department engaged in quantitative
and qualitative analysis to assist in the strategic planning and reporting for the Trial Court.
Bruni will be responsible for the Trial Court’s internal communications, and will work with the Executive Office of the Trial Court and the SJC Public Information Office to update and improve the Trial Court’s
online and print content and materials. She will help
ensure an effective and timely flow of news and information about the Trial Court to its employees and court
users.

Clerk issues notice of pilot
study on rebuttal time
Clerk Francis V. Kenneally has issued a Notice of
Pilot Study on Rebuttal Time. During oral arguments
before the full court in the months of February and
March, the justices of the Supreme Judicial Court will
allow the appellant, at the outset of opening argument,
to reserve no more than five minutes for rebuttal. Failure to reserve a portion of argument time for rebuttal
constitutes a waiver of rebuttal time. Reserved rebuttal
time is for the purpose of answering contentions made
in the other side’s oral argument. Any time reserved for

rebuttal will be deducted from that party’s allotted time
for opening argument. Absent leave of the court, where
there are multiple appellants, only one may reserve time
for rebuttal.
At the conclusion of the oral arguments in March
2014, the justices will review the use of rebuttal time
under the pilot study and consider whether to amend the
rules to provide for rebuttal time during arguments.

BMC announces new Veterans
Treatment Court session
The Boston Municipal Court Department has implemented a Veterans Treatment Court session in the Central Division of the BMC. This new Veterans Treatment
Court is the second in Massachusetts, following the implementation of a Veterans Treatment Court in Dedham.
This session, which began Jan. 29, is staffed with
specially-trained judges, clinicians, probation officers
and attorneys, and is adapted to consider and meet the
specific needs of veterans. The purpose of the session is
to incorporate rehabilitative and treatment services for
veterans by providing them with the tools and services
to help them overcome substance abuse issues, alcoholism, mental health issues and emotional disabilities. In
addition to treatment, the session incorporates resources for academic and vocational training, job skills and
placement services. Judge Eleanor C. Sinnott, a former
Navy intelligence officer attached to Special Operations
Command-Korea, presides over the court.

Fitchburg Law Library moves to
the public library
The Fitchburg Law Library has re-opened at a new
location on the second floor of the Fitchburg Public Library, located at 610 Main St.
The Law Library is a helpful resource for attorneys,

those seeking to represent themselves or anyone who
wants to conduct research.
The library’s new hours take into account court sessions scheduled for small claims and Housing Court
issues:
• Monday & Wednesdays: noon-8 p.m.
• Fridays: 10 a.m.-5 p.m.

Probate and Family Court
announces free workshops
The Administrative Office of the Probate and Family Court Department has announced a new program
that will offer free family law workshops to mothers
and fathers who are residents of Suffolk County and
who are intending to file matters before the court as
a way to help families better understand court procedures.
Mothers and fathers will learn the basics of family
law, including:
• How to prepare for court and present a case before
a judge
• Legal options for filing for and responding to a divorce action and a motion for temporary orders
• Issues for unmarried parents: establishing paternity
and filing a paternity action
• Custody agreements and parenting arrangements
• Identifying domestic violence and how to get help
The 90-minute workshops are divided by gender,
with mothers attending separate workshops from fathers.
The workshops are held in Boston City Hall every month
through June, from 5 p.m. to 6:30 p.m. Questions may be directed to Evelyn Patsos, at evelyn.patsos@jud.state.ma.us.
Workshop dates for mothers: March 13, April 10,
May 8 and June 12.
Workshop dates for fathers: March 27, April 17, May
22 and June 26. ■

Started by lawyers, the Boston Legal Community
House Project of Pine Street Inn is raising money
to create a permanent home for Boston’s homeless
men and women.
The Massachusetts Bar Association recently made a
leadership donation, adding to the nearly $800,000
generously donated to date from across the legal
community.
Please join your fellow lawyers and give today to
help reach the $1M goal. Gifts in any amount are
welcome and every gift makes a difference. Your
gift will help to end homelessness!

Give to the Boston Legal
Community House Project.

Update your profile
and connect with more
MBA members

The Massachusetts Bar Association’s My Bar Access, a valuable member benefit, provides MBA members with an opportunity to share practice information in one convenient,
online location.
Looking to connect with more MBA members? Complete your My Bar Access profile. Add your photo and tell fellow MBA members something about how you practice
law in your bio. If you have a LinkedIn, Facebook, Twitter, WordPress or another social
media profile, you can connect them to your My Bar Access profile. Don’t forget to complete the “Education” and “Job History” sections.
By updating your profile, you make it easier to build your My Bar Access contact list.
The My Bar Access Advanced Search directory, only available to MBA members, allows
fellow practitioners to search for you based on name, location, county, education or section membership, and connect with you about case questions and more. ■

MBA seeks nominations
for 2014-15 officer,
delegate positions
Submit nominations to MBA by Friday, Feb. 21
The Massachusetts Bar Association is currently accepting nominations for officer and
delegate positions for the 2014-15 membership year.
Nominees must submit a letter of intent and a current resume to MBA Secretary
Christopher A. Kenney by 5 p.m. on Friday, Feb. 21, 2014 to be eligible.
To submit a nomination, mail or hand-deliver the information to:
Massachusetts Bar Association
Attn: Christopher A. Kenney, MBA secretary
20 West St., Boston, MA 02111
If you have any questions about the nomination process, call MBA Chief Operating
Officer Martin W. Healy at (617) 988-4777. ■

More than 160,000 tax liens, lis pendens
and petitions to foreclose have been
filed in Massachusetts
since 2010.
Be the first to know about delinquencies.
Take immediate action.
Keeping an eye out for delinquencies can be difficult. Red Flag Alerts deliver the
information you need in an actionable format.
Red Flag Alerts combine new tax lien filings with lis pendens and petition filings.
They contain more detailed information than you get from other sources. Important
things like owner-occupancy status, property and owner address, an automated
value model for the property in question and more.

Essential, timely Red Flag Alerts delivered to you automatically.

Names of all supporters will be published in a final ad in Massachusetts Lawyers Weekly as well
as listed on a plaque in the entry of the future Boston Legal Community house.
617-896-5392 datasolutions@thewarrengroup.com

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

5

BAR NEWS

House of Delegates supports adding access to
justice to bar exam
The Massachusetts Bar Association’s
House of Delegates (HOD) convened in
January at the MBA’s headquarters in
Boston, where HOD members voted to
support the addition of an access to justice component to the bar exam.
Supreme Judicial Court Justice
Ralph D. Gants, co-chair of the Access
to Justice Commission, presented the
proposal outlined in the Access to Justice Commission Report. According to
the findings of the commission, many
law school graduates are not prepared
for a career in small or solo practice due
to a lack of practical training in these
areas. Professor Russell Engler of New
England Law | Boston also noted that
law school students often pick courses
based on bar exam topics that exclude
subject areas necessary for a community
lawyer. Gants reported that nearly half
of Massachusetts practitioners are solo
and small firm lawyers.
Prior to the vote, President Douglas
K. Sheff welcomed members back from
the holidays and provided an update
on recent charitable initiatives. Sheff
thanked volunteers who helped feed approximately 2,000 people in the Boston
area for Thanksgiving by contributing
both time and money to the Christmas
in the City Annual Turkey Drive. He
also noted that the legal community has
raised $800,000 for the Boston Legal

Community House Project, an effort to
fund permanent housing for the homeless at the Pine Street Inn. The fundraising goal is $1 million and Sheff noted
that once that goal is reached other organizations will likely contribute matching
funds.
Also at the meeting, the HOD voted
unanimously to support, in principle,
Senate Bill 70, An Act Relative to Limited Liability Companies. Euripides
Dalmanieras, chair of the Business Law
Section Council, introduced attorney
James Silva, who provided background
on the bill, which aims to lower the annual report fee for an LLC with six or
less employees. Silva noted that lower
fees may encourage more businesses to
form an LLC.
Guest speaker Superior Court Judge
Dennis J. Curran gave a presentation on
presumptive mediation. Based on the
large, overwhelming workload of cases
within civil sessions, Curran has conducted his own independent study on
ADR and mediation options during the
last four years. According to Curran, by
offering the opportunity of mediation,
his case workload decreased by more
than 40 percent.
Rounding out the topics of discussion was Howard Neff, the executive director of the Judicial Conduct Commission, a group responsible for investigat-

Guest speaker Superior Court Judge Dennis J. Curran.

ing complaints of judicial misconduct
against state court judges and recommending discipline of judges when necessary to the Supreme Judicial Court.
Neff reviewed the Code of Judicial

Conduct, how to file complaints, what
type of complaints the commission can
investigate, how complaints are resolved
and what type of action can result from
these investigations under the statute. ■

MBA’s Alternative Dispute Resolution
Committee sponsors ‘best practices’ program
On Thursday, Jan. 9, the Massachusetts Bar Association’s Alternative Dispute Resolution Committee
sponsored a “best practices” program
for law students and attorneys at the
MBA’s offices in Boston.
This program shared tips and insights to help attorneys maximize
their ADR experience. Attorneys Jeffrey S. Stern and Francis J. Lynch III
led an interactive dialogue between
the experienced mediation professionals on the MBA ADR Committee
and attorneys who appear in mediation (or wanted to learn how).
Topics included how to prepare a
client for mediation, what is the right
balance between zealous advocacy
and respecting the more cooperative
nature of mediation, what are the
best techniques for breaking impasse,
what is the right time to mediate,
what kind of mediator do attorneys
and their clients want, and abuse of
the mediation process.
The next ADR best practices
program is scheduled for Thursday,
March 13, at 5:30 p.m. at the MBA,
20 West St, Boston. If you would like
to attend the program, please contact
Elizabeth O’Neil, director of community and public services, at eoneil@
massbar.org or (617) 338-0560. ■

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for lawyers.
Unequalled insurance, ensuring
Massachusetts Bar Association members
are protected with comprehensive
coverage in today’s marketplace.
Underwritten by the nation’s largest
provider of malpractice insurance,
MBA Insurance provides expert,
customer-focused staff.

To find out how the MBA Insurance Agency can help you with
your malpractice and other coverage needs, contact us:
Boston (617) 338-0581 • Springfield (413) 788-7878
Email: Insurance@MassBar.org

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

7

MBA CLE

At-A-GlAnce

feBRuARy continuinG leGAl educAtion pRoGRAMs By pRActice AReA
Business lAw

Supreme Judicial Court Rule 3:16 requires all persons newly
licensed to practice law in Massachusetts on or after Sept. 13,
2013 to complete a one-day Practicing with Professionalism
Course.
As the only approved provider offering the course in multiple locations statewide, the Massachusetts Bar Association is committed to ensuring that newly-licensed attorneys enter the profession in good standing by offering an affordable and convenient
means of satisfying this rule’s requirement.
Thursday, March 20, 8:30 a.m.–5:30 p.m
UMass School of Law
333 Faunce Corner Road, North Dartmouth

GreGory w. SullivAn
Research Director, Director of the Centers
for Better Government and Economic
Opportunity, Pioneer Institute, Boston
Sullivan is the former inspector general of the commonwealth of Massachusetts and now Pioneer Institute’s research director and director of the Centers for
Better Government and Economic Opportunity. As
inspector general, Sullivan directed many significant
cases, including an investigation that led to the conviction of House Speaker Salvatore DiMasi, a study that
identified irregularities in the approval process of the
state charter school program, and more.
A 17-year member of the Massachusetts House of Representatives, Sullivan served on the Ways and Means,
Human Services, and Post-Audit and Oversight committees. Working with the Pioneer Institute, he introduced legislation to institute a workfare requirement
in Massachusetts, which was passed by the House and
Senate. Sullivan also sponsored legislation that resulted in the establishment of the Massachusetts research
and development tax credit.

#CLE @MassBar
Follow us on Twitter for announcements about
upcoming CLEs ... and more.

The
SOLACE program
was co-founded
12 years ago in
2002 by U.S.
District
Judge
Jay C. Zainey
of Louisiana and
Mark
Surprenant, a New Orleans attorney.
MBA Vice President
SOLACE (SupChristopher P. Sullivan
port of Lawyers/
Legal Personnel
— All Concern Encouraged) was born
from a simple, yet important question:
what can members of the legal community do to help each other in various
times of need?
The program, which began in Louisiana, has now been implemented in 15
states and Puerto Rico. Massachusetts
came on board to the SOLACE program this past fall. SOLACE participants include lawyers, paralegals, legal
assistants and legal staff, court personnel, and anyone who works in the legal
profession. It harnesses the personal networks of its volunteer members to provide critical assistance, especially when
there has been a death in the family, illness or other catastrophic loss.
The process is simple yet effective.
Members notify a program coordinator
by email when someone from within the
legal “family” needs assistance due to
tragedy or some other unfortunate circumstance. The program administrator
then sends out a short, confidential email
to the SOLACE network in a given state
chapter. SOLACE members who might
be able to help can reply and ultimately
be put in touch with the requester. There
is never any pressure to offer assistance

and participation is purely
voluntary. The
identity of the
requester is kept
confidential in
the initial email
blast from the
administrator.
SOLACE
has flourished
SOLACE Co-Founder & U.S.
thanks to the
District Judge Jay C. Zainey
power of the
Internet
and
instant communication. According to
Zainey, the Louisiana SOLACE chapter has approximately 8,800 volunteer
members. If each of those members has
10 friends, family members or neighbors
in different careers, there are potentially
88,000 people who can address a request
for help. By using email, the power of
such a vast network can be leveraged
quickly and effectively.
“In 11 years we’ve never had to
tell anyone we couldn’t help them. It’s
amazing,” said Zainey. “If the message
reaches 88,000 people, eventually some-

facilitates
an
opportunity to
offer clothing,
housing, transportation, medical community
contacts and a
myriad of other
services when
someone in the
legal commuMassachusetts SOLACE
nity faces a dire
program coordinator
need.
Patrick Curran
MBA Vice
President Christopher Sullivan first learned of the
SOLACE program when he attended a
convention in New Orleans as presidentelect of the Massachusetts Chapter of
the FBA. Sullivan heard Zainey speak
about SOLACE at a luncheon and took
the idea back to the FBA chapter in
Massachusetts.
In June 2013, Zainey came to Massachusetts as part of the FBA’s annual
judicial reception. In a meeting with
several bar associations, including the
MBA, Zainey described the SOLACE

" It’s amazing what people will do for total
strangers — the common bond or link being
they’re all members of the legal community
helping each other during a time of need."
— U.S. District Judge Jay C. Zainey, SOLACE co-founder
body is going to know somebody who’s
going to know somebody.”
“It’s a pretty easy, low maintenance
way of connecting people who need
help with people who can provide help,”
said Patrick Curran, an executive committee member of the Massachusetts
Chapter of the Federal Bar Association
(FBA) who will serve as the SOLACE
program coordinator in Massachusetts.
Zainey noted that the Louisiana
chapter receives more than 100 requests
for help in a year, averaging about five
to 10 per month. The mantra of the program is: “Nothing too big. Nothing too
small.”
“It’s amazing what people will do
for total strangers — the common bond
or link being they’re all members of the
legal community helping each other during a time of need,” added Zainey.
SOLACE will never ask for cash donations from participants. The program

program and the success it had enjoyed
in Louisiana. Also represented at the
meeting was the Association for Legal
Administrators — Boston chapter, the
Boston Bar Association, the Massachusetts Black Lawyers Association as well
as other legal industry organizations.
The MBA’s Massachusetts chapter
of SOLACE has already attracted more
than 100 members to date.
“We’re thrilled that we’ve received
such a positive response to this,” noted
Sullivan. “We think it’s going to be a
real benefit to MBA members, their
staffs and others we work with in the
court system, corporations and public
agencies. What we’re trying to do is really harness the contacts and clout of the
entire Massachusetts legal community
so that everyone benefits.”
To join the Massachusetts SOLACE
chapter, send an email to Curran at
mass.solace@gmail.com. ■

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

9

BAR NEWS

MBA Mock Trial program kicks off its 29th year

MBA Mock Trial committee member John Postl explains this year’s case, which involves an airplane, during the Jan. 7 Mock Trial Judges’ Orientation.

Across the state this year, more than 130
high school Mock Trial teams are prepping
to compete during the Massachusetts Bar Association 29th annual Mock Trial Program.
First organized in 1985, the Mock
Trial Program started in January and runs
through March 25. The program places
high school teams from 16 regions across
the state in a simulated courtroom, where
students assume the roles of both lawyers
and witnesses. More than 1,500 student

competitors across the commonwealth are
expected to participate in the 2014 Mock
Trial Program. In addition, more than 100
lawyers across the state will volunteer as
coaches and judges.
This year’s civil case revolves around
whether or not the wing of a stunt plane
sheared off due to a design defect, or as a
result of pilot error. The plaintiff is the child
of John Dymek Jacob, a stunt pilot who died
performing an advanced aerobatic maneuver

called the Triple Lindy while practicing for
a stunt show at the Devlin County Fair. The
plaintiff asserts that the defendant, Carborite
Aircraft Inc., failed to design the plane to
withstand the standard amount of g-force
necessary for a stunt plane in order to save
money. Carborite’s position is that the plane
was designed correctly, and that the plane’s
maximum permitted g-force was only exceeded because of the negligent actions of
the pilot.

PHOTO BY JASON SCALLY

Out of the more than 130 teams of students, four will ultimately advance to the
semi-final elimination round and face off
during trials held simultaneously on March
20 in Boston and Worcester.
The two finalists will then advance to the
state championship, to be held on March 25
in the Great Hall of Faneuil Hall in Boston.
In 2013, the Winsor School of Boston won
the state championship and competed in the
national tournament in Indiana. ■

with

Practicing

Professionalism
massachUsetts bar association

mBa course dates and
locations statewide

The Massachusetts Bar Association offers this affordable and convenient one-day
professionalism course to help you enter the legal profession on the right track.

• free mBa memBershiP — To learn more about MBA membership advantages, visit
www.massbar.org/ibelong
• Breakfast, lunch and cocktail recePtion — An opportunity to network
with seasoned practitioners and judges as you learn about opportunities within the
legal services community
• record-keePing and attendance rePorts — All necessary documents
required by the Board of Bar Overseers handled for you by the MBA

oc

as

i at i o

m

n
1911

«

«

The Massachusetts Bar Association is an approved
provider of the Practicing with Professionalism Course.

sachu

s

ss

• Your reputation is everything — how lawyers should act
• Ethics for the practicing lawyer
• Practicing law in the digital age — navigating social media
• Introduction to law office management
ts bar a
• Introduction to the Massachusetts Court System
et

Attorney Glynn has been designated as a
neutral for both non-binding mediation
and arbitration; he has successfully
managed those matters, either resolving/
settling cases in mediation or rendering
fair/equitable decisions at arbitration.

Is the Uniform Commercial Code (UCC)
relevant to current issues, especially issues
arising in the
context of home
foreclosures?
Should the UCC
be amended to
L. Gary Monserud
meet
current
concerns?
Is
there a need for federal oversight and
intervention with respect to home mortgages and foreclosures? These questions and many more will be addressed
in a conference jointly sponsored by
New England Law | Boston’s Center for
Business Law, the Massachusetts Bar
Association and the Uniform Commercial Code Reporter-Digest on Thursday,
Feb. 27, at 154 Stuart St. in Boston. The
conference will open at noon with a reception. There will be introductions at
12:45 p.m. and the panel discussions
will run from 1 to 5:30 p.m. There is no
charge to attend the conference.
In any given week, a person reading The New York Times or the Boston
Globe will invariably come upon an article in some manner discussing home
foreclosures, allegations of abuses by
lenders, varied charges of wrong-doing
in connection with loans and mortgages,
and proposed statutory or regulatory
reforms. Yet, respected members of the
banking community will take issue with
many allegations of abuse and find proposed regulations and statutes not only
onerous but harmful to lenders and bor-

rowers alike. It is difficult to get beneath
the angry rhetoric to the hard legal issues confronted by legislators, regulators, attorneys for lenders and borrowers, and interested citizens.
The aim of this conference is to
bring together experts on payment law,
representatives of the banking community, advocates for homeowners and
persons who can speak for the regulators, in an effort to refine and examine
in-depth and detail current problems
and cutting-edge proposed solutions relating to mortgages, promissory notes,
foreclosure procedures and other related
matters. The conference will also provide participants with a historical perspective on payment law, especially the
law pertaining to promissory notes and
holder-in-due course rights. Practitioners involved in any facet of real estate
transactions, civil litigators, attorneys
for lenders or regulators, students interested in the UCC or real estate transactions, and academics teaching or writing on topics involving real estate law
or payment systems will find the conference to be interesting and timely.
Questions? Email zachary.p.heller@
nesl.edu or call him at (973) 886-2718.
To register, email nadine.m.petsuck@
nesl.edu or call her at (570) 401-9179.
Please include your name, affiliation,
phone number and email. On-site registration will also be accepted. For additional conference details visit www.
nesl.edu/UCCConference. ■
L. Gary Monserud is a professor at New
England Law | Boston and teaches Contracts,
Modern Remedies, UCC: Sales, and UCC: Secured
Transactions.

Braintree, MA 02184
781-356-1399

www.beverlyboorstein.com

ADR

jbglynn@glynnmediation.com
www.http://glhrlaw.com/john-b-glynn

ADR

Sheff attends January
Judges’ Conference meeting
Massachusetts Bar Association President Douglas K. Sheff attended the January Massachusetts Judges’ Conference meeting in Worcester. A nonprofit organization, MJC provides Massachusetts judges with an opportunity to have an independent voice on a wide
range of court-related concerns. ■

wf@fitzgeraldresolution.com

www.mdrs.com

CONTINUED ON PAGE 11

PHOTO CREDIT: PHOTO COURTESY OF THE MJC

MBA President Douglas K. Sheff and Massachusetts Judges’ Conference (MJC) President Judge James Collins
(center), with the MJC Board of Directors

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MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

12

EXPERTS&RESOURCES
CONTINUED FROM PAGE 11
E-DISCOVERY

DIABILIT Y INSUR ANCE

OA M
●

●

O ’Connell, A ttmor e & M or r is, LLC

Daniel T. Wright, Esquire
Former Lead Disability
Counsel for MassMutual

The Law Practice Management Section Council frequently organizes panel
discussions, luncheons and seminars on
the topic of “Growing Your Practice and
Increasing Your Client Base.” In furtherance of that topic, I have been speaking
with numerous practitioners who have
managed to increase their particular law
practices in the last few years. I have met
most of them for meetings in person and
others I interviewed on the telephone. The
focus topic I addressed with the 25 interviewees was how they managed to substantially increase their practices within
the last few years. The interviewees were
selected because they were either already
known to me to have been practitioners
who had substantially increased their
practices within the last few years, or they
were practitioners who had substantially
increased their practices within the last
few years and were referred to me for an
interview for the purpose of completing
this article on behalf of the Massachusetts Bar Association. The interviewees
were also selected based on geographic
diversity, practice areas and size of law
firm. Practitioners interviewed ranged
from sole practitioners and small firm
members to mid-sized and large firm
members. Their years of practice ranged
from 10 to 30 years.
Hopefully, the following summaries
from the meetings/interviews will provide us with some pragmatic, yet valuable tips to consider when we contemplate ways in which we may grow our
practices. They appear in no particular
order.

Support

MEDIATION

YOUR AD NEEDS
TO BE HERE.

Mediation and
Arbitration of all
Domestic Relations
and Probate Matters

Although some practitioners indicated this as a factor, one particular business litigator expressed that she credited
the substantial growth of her practice to
being at a point in her career where she
required a larger firm to accommodate
her support needs (administrative and
technical support). Whether you consider
this the leverage theory, the support staff
theory, the chicken and egg theory, or
something else, what this business litigator articulated was that she doubled her
practice within a few years because she
was at a point in her career where she
did not feel that the small firm where
she practiced could accommodate her
burgeoning business litigation practice.
Instead, she moved to a mid-sized firm
where she had not only more associates
available to work on her cases, but also,
a sophisticated support and IT staff. In
fact, her firm provides support on nights
and weekends. She expressed that she is
able to spend more time rainmaking now
that she has the support her practice requires. She has been able to manage a
higher volume of cases and has been able
to obtain and retain more referrals from
existing clients.

Support and Affiliation with
Associations
Similar to the business litigator, other interviewees, in particular the estate
planners and the immigration attorneys

indicated that support was important,
and in particular having a more experienced assistant attributed to their practice growth. Certain fields are more successful when an experienced assistant is
more accustomed to the issues involved,
the personal attention involved, the semantics involved and even the intricate
paperwork involved. Estate planning and
immigration are certainly in this category of legal fields. In addition, the estate
planners and the immigration attorneys
expressed that their affiliations in various
associations provided them with substantial practice growth over time. Not only
may they be considered recognized leaders in their respective fields because of
their positions and involvement within
this affiliation, but also they are able to
obtain worthwhile referrals.

Trade Publications
Some interviewees attributed a growth
in their practices to their participation or
involvement in various trade publications.
A business organization attorney indicated that he had written articles in business
trade magazines specifically addressing
some present and pertinent issues in his
field. Each time an article of his was published, he would receive inquiries from
potential clients concerning the specific
matter. Many times, the potential client
who was inquiring would become a client. Other times, the inquiring person
would refer him clients. In turn, those clients would refer him more business. Other interviewees indicated this same result
with their blogs. Although not publishing
an article in a trade magazine, a blog may
have the same effect by capturing someone’s attention and possibly having that
person become a client.

Succession
A couple of the practitioners interviewed mentioned that they were in the
right place at the right time and took over
practices from retiring attorneys. One
attorney had always worked with the
more senior attorney and the succession
plan was very gradual, but later became
very deliberate. The other attorney had
worked with the more senior attorney
and had later gone on to another small
firm. Years later, the more senior attorney
recruited the more junior attorney and approached him with the succession plan.
The more senior attorney did not have a
very experienced attorney working with
her on cases, and at this point, the more
junior attorney had developed a successful practice.

Attorney Referrals
One of the more popular reasons cited
for practice growth was attorney referrals. Many practitioners indicated either
that they still maintain strong referral
relationships with colleagues from law
school who usually practice in different
fields of law, or that they have developed
strong referral relationships with other
attorneys over the years. Some attorneys
mentioned that their shared office space
arrangement promoted client referrals because their shared office space consisted
of practitioners from various legal fields.
13
This reason was cited for criminal

defense practitioners, personal injury
lawyers and family lawyers in particular. Not only was shared office space a
factor expressed by many interviewees,
but also the geographic location of their
office itself seemed to be a strong factor regarding referrals. For example,
some practitioners mentioned that either moving to a shared office space
helped their practice grow, or moving
their office entirely seemed to increase
their client base. For example, this factor was mentioned by attorneys who
had moved to office space with proximity to a courthouse or to a geographical
region where they were obtaining more
clients.

Specialty
Similar to the attorney referral feature was the specialty feature. Practitioners indicated that they had managed
to maintain a strong referral base over
the years because of their particular
specialties. For example, a couple of
the medical malpractice attorneys interviewed mentioned that their particular
specialty areas within medical malpractice had largely assisted them with
substantially increasing their practices
within the last few years. A specialty
within their field has allowed them to
foster strong working relationships
with experts and had provided them

The Massachusetts Association of Hispanic Attorneys (MAHA), the leading Hispanic legal organization in Massachusetts,
has announced its 2014 executive officers
and board of directors (full bios are available at www.mahaweb.org):

MAHA is an affiliated bar of the
Massachusetts Bar Association. MAHA
President Jessica A. Massey says that
one of her goals this year is to increase
MAHA’s collaborative efforts with other
local bar associations and community
organizations. Representatives of any organizations that are interested in partnering with MAHA are invited to reach out
to Massey directly at JessicaAMassey@
gmail.com, or MAHA’s general mailbox,
MAHAboard@gmail.com.
Massey and her fellow officers take
the helm during a particularly exciting
time for MAHA. The Hispanic National
Bar Association (HNBA), the premier
professional organization representing
the interests of the Hispanic legal community in the United States, has chosen
Boston as the site of its Annual Convention in 2016. MAHA will serve as the host
bar association during the convention, the
first Boston-based Annual Convention in
the HNBA’s 30-plus year history. ■

www.aadority.com

SERVING
BAR ASSN.
taxatioNMA
seCtioN
MEMBERS
AND
THEIR
CLIENTS
serViNg Ma
Bar
assN.
MeMBers aNd their ClieNts

Mediation • Arbitration
by a trial lawyer with over
20 years of experience as
a neutral
Jeffrey S. Stern

American College of Civil Trial Mediators
National Academy of Distinguished Neutrals

with successful records of cases. The
civil litigators indicated that they managed to grow their respective practices
by having specialties within the rather
large field of civil litigation. Certain attorneys became more successful than
others in certain areas of civil litigation
and have been able to experience a burgeoning specialty practice.

Diversification
On the other hand, some practitioners mentioned that diversifying their
practice, usually by bringing in other
attorneys with other specialties to their
firm, has aided them in substantial
growth. For example, a couple of residential closing real estate attorneys who
primarily maintain banks as their firm’s
clients expressed that they learned to
branch out years ago by bringing in
other attorneys to their small firm who
worked in other fields in order to maintain a thriving practice when the real
estate market is suffering. Together,
they have all managed to maintain and
achieve substantial growth overall. ■
Thomas J. Barbar is a principal with the
Family Law Department at Deutsch Williams
and concentrates in the fields of probate and
domestic relations. Barbar is the former chair
of the MBA’s Law Practice Management Section
Council and has been a panel participant and
chair for probate and family law issues for the
MBA.

I have been practicing law (solo
practice, mostly estates and related
matters) since 1983, but lately less of it than
I would like. So I decided to take a seminar
on marketing a legal practice, which I’ve
not had to do in a significant way before.
I was prepared to set up whatever kind of
website is reasonably affordable (and I am
fairly computer literate), but by the time
I heard about the necessity to use Twitter,
Google Plus, Facebook, blogging, search
engine optimization and more, my head
was spinning. Since then, I’ve done nothing to market my practice, since it seems
too overwhelming at this point to “learn
new tricks.” How do people find time to
actually serve their clients, and when did
professional life acquire the necessity to be
a tech wiz?

A:

We agree that the kinds of input you
would get from a seminar, conference, article, etc. about modern marketing
can feel as alien and incomprehensible as
some of the current crop of musical performers, and one’s impulse is to switch to
another channel. Whether one’s life is actually enriched by Facebook, Twitter, Instagram, etc., and whether these activities are
worth one’s time as a person, is certainly
debatable (assuming you can get someone
to look up from their smartphone to debate).
But lawyers, unless someone else is
generating business for them, can no longer
ignore the need for marketing. Think back,
too, to the early/mid-1990s, when even
email seemed new-fangled and confusing,
and you felt helpless when your PC kept
crashing with “fatal errors.” Gradually, you
probably adapted and became familiar with
at least some aspects of new technology
that previously seemed unnecessary. So,
here are some suggestions, for those of us
who are old enough to have mastered cursive writing:
• The older marketing strategies still work
— you can call or send letters to people
who have been referred to you in the
past, or who might be interested if they
knew of your services (as long as you
make sure whatever you do is consistent
with the Mass. Rules of Professional
Conduct on Advertising and Solicitation.) This includes your peers whose
practices do not specialize in the population you address. (In this regard, defining
your niche is helpful, and that requires
no technological proficiency.) Another
non-technological approach is in-person
networking and placing ads, e.g., in a local newspaper.
• When it comes to marketing your practice technologically, starting small and
going slowly is better than burying your
head in the sand. Although a simple, inexpensive website cannot compete with
a sophisticated one that has synergistic
connections to blogs, Facebook, etc., it is
much better than having no internet presence at all, and it is a way for you to “get
your feet wet.” And, if you like to write,
blogging, may be relatively painless – it
is basically a way to write a short column
(fact or opinion, but with an emphasis on
exhibiting your particular expertise), or
something like a letter to the editor, on
a recurrent basis. The initial set-up of ei-

ther of these, if you are not sufficiently
tech-ish, can be done by most people
under 30 pretty much in their sleep. For
examples of content, look at what other
lawyers with similar practices have done.
• Instead, you could start with a personal
Facebook page or simple LinkedIn profile, to develop a feel for those worlds,
or you could start reading other people’s
tweets on Twitter, before you think about
contributing your own. There are many
more media and ways to coordinate media, but you can postpone all that until
you master some basics, one at a time.
• Of course, another approach that would
get you up and running much more
quickly is to hire a professional firm to
develop a website and blog and assist
with social media strategy and implementation. This will cost real money, but
perhaps less than one good case per year.
The main point is to go at your own
pace. For help with marketing/technology,

" When it comes to
marketing your practice
technologically, starting
small and going slowly is
better than burying your
head in the sand."
our associated service the Law Office Management Assistance Program can be helpful (providing not only group offerings and
extensive information via their website,
MassLOMAP.org, but individualized consultations as well). For help with the anxiety and avoidance triggered by all of this,
contact us at LCL.
Questions quoted are either actual letters/emails or paraphrased and disguised
concerns expressed by individuals seeking
assistance from Lawyers Concerned for
Lawyers. Questions for LCL may be mailed
to LCL, 31 Milk St., Suite 810, Boston, MA
02109; emailed to email@lclma.org or
called in to (617) 482- 9600. LCL’s licensed
clinicians will respond in confidence. Visit
LCL online at www.lclma.org. ■

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

15

aND

Notable
Quotable
Mba MeMbers iN the MeDia

Slip and fall in winter

“

“

As soon as it’s practicable, go

attorneys and clients that’s not known to prisons,

MBA preSIDenT DOuGLAS K. Sheff, AccuweATher.cOM, JAn. 16, 2014

“I’m sure [carney] looked at those issues before

Sheff spoke to AccuWeather, the national weather-based information and
news organization, about the legal hazards presented by slip and fall cases in
winter. In addition to explaining the law in Massachusetts, the article featured Sheff’s “Tips for Protecting Yourself Against a Slip and Fall Lawsuit.”

While on trial, James “Whitey” Bulger’s attorney J.W. Carney Jr.
allowed his client to write notes on a legal pad and passed these “love
letters” between Bulger and his girlfriend Catherine Greig, who was
held at the Donald Wyatt Detention Facility in Rhode Island. Healy
spoke to the Globe and WBZ Radio.

Obviously, the towns are hungry for revenue and,

rep. carlos henriquez’s assault
conviction

if they think there’s a gray area, then they may start
assessing properties that have not been historically

“

assessed, if there’s not enough public access.
... It’s a judgment call.

“

known as a no-nonsense practical jurist.

The Massachusetts Supreme Judicial Court will hear a case that will determine if conservation groups can be taxed on land protected from development.
The town of Hawley, Massachusetts, claims that for conservation land to qualify
for a charitable tax exemption, it must be “broadly available” for public use. The city sent a property tax bill to
the New England Forestry Foundation for a 120-acre
parcel of land because the town feels the foundation has
not encouraged public access to the conservation area.
Communities looking for additional tax revenue could
be impacted by this court decision, which could make
conservation land a possible source of funding.

On Jan. 15, Dorchester Democrat Rep. Carlos Henriquez was found guilty of two counts of assault and
battery, stemming from a 2012 incident. Henriquez, in
his second term as an elected official, was sentenced to
serve two-and-a-half years at the Billerica House of Correction, with six months to be served. Healy was quoted
via email in two separate State House News stories about
Henriquez’s sentencing, including one that was picked
up by the Metro West Daily News.

The Massachusetts School of Law launched an alumni mentor program in 2013,
which matches students and recent graduates with established professionals, and
allows participants the opportunity to job shadow and build relationships in the
legal community. Healy spoke to the Boston Globe about the benefits of a mentor
program given “the challenges facing over 2,000 new attorneys admitted annually
to practice law in Massachusetts.” The Massachusetts Bar Association provides both
a mentoring program and mentoring circles to attorney members.
Where available, news clips — including audio/video — can be found on our website at www.massbar.org.

Over the past decade, juvenile competence to stand trial (JCST) has become an issue on the agenda of states
around the country. In the past five
years, many states have passed JCST
legislation. A currently pending bill (H.
1539)1 would create a juvenile-specific
competence law in Massachusetts, making the state part of the growing trend
toward addressing JCST legislatively.
This article will provide a basic history of the evolution of JCST both from
a legal and psychological perspective.
Against this backdrop, it will then review the current state of JCST law in
Massachusetts and proposed changes
in H. 1539. It will then discuss a major emerging issue in the field — one
that Massachusetts is likely to face in
the near future — the need for juvenile
competence remediation services.
In 1960, Dusky v. United States established that defendants must be competent to stand trial (CST). The Supreme
Court held that the standard for competence is whether a defendant has “sufficient present ability to consult with
his lawyer with a reasonable degree of
rational understanding — and whether
he has a rational as well as factual understanding of the proceedings against
him.”2 In other words, a defendant must
be able to understand factual information regarding the proceedings against
him or her, reason to make decisions
utilizing this information, and be able to
assist counsel in their defense.
In in re Gault in 1967,3 the Supreme
Court held that juveniles are entitled to
due process in delinquency proceedings. Following the 1990s, legislative
reforms that put youth at risk for harsher punishments, at younger ages, for a
larger number of offenses, JCST began
to be raised. However, it was not until
the early 2000s that CST was raised in
juvenile court with any frequency.
Psychological research began to
address JCST as early as the 1980s,4
but the most comprehensive study to
date was not conducted until the early
2000s.5 The MacArthur Foundation’s
Juvenile Competence Study examined
927 adolescents (12 to 17 years old),
who were living either in juvenile justice
facilities or in the community, and 466
young adults (18 to 24 years old) who
resided either in jail or in the community. It found that, on average, juveniles
under 15 years old performed worse on
a standardized measure of competencerelated abilities when compared to
young adults. Sixteen- and 17-year-old
participants’ performances were similar
to that of the young adult group. Both
intellectual disability and mental illness also were found to increase the risk
that a youth would have difficulty with
decision-making abilities usually considered necessary to be competent. Subsequent studies of youths’ CST abilities
have found similar results.6 Additional
research has also found that judges
now take age and psychosocial immaturity into account in their determina-

KIMBERLY LARSON,
J.D., PH.D., is currently
an assistant professor
in the Psychiatry
Department at UMass
Medical School, where
she is part of the
Law and Psychiatry
Program and the Center for Mental Health
Services Research. She currently serves on
the Massachusetts Governor’s Juvenile Justice
Advisory Committee (JJAC) and the MBA Juvenile
Justice and Child Welfare Section Council.

tions of youths’ competence.7 Similarly,
these studies indicated that evaluation
of youths’ competence related abilities required different procedures than
those used with adults in order to take
developmental variables into account.8
In 2005, this gap was addressed when
a structured interview clinicians could
use to assess youth’s competence-related abilities, the Juvenile Adjudicative
Competence Instrument (JACI), was
published.9
By the mid-2000s, researchers had
explored JCST and clinical forensic
practice was catching up to the increasing requests from courts for evaluations, however, states lagged behind in

Michigan, Maine, Connecticut, Ohio,
Illinois, Michigan and Utah have passed
juvenile-specific competence legislation, recognizing the unique needs of
youth and the courts in which their cases are heard. In total, at least 20 states
now have juvenile-specific legislation
with several more in process.10
In Massachusetts, the adult CST
statute is currently applied to juveniles.11 Similar to other states, Massachusetts is considering juvenile-specific
competence legislation because the current Massachusetts law, created for use
in criminal courts, does not provide a
good fit for juvenile proceedings. Like
other adult CST statutes, it does not address the special questions and issues
applicable to juveniles; for example,
with youth the qualifications necessary
for evaluators, the location in which the
examination takes place, the content of
the evaluation and report, and the types
of dispositions available to the court differ.
Current Massachusetts CST law creates a “triage” system. Initially, defendants are briefly evaluated by a court
clinician.12 A more comprehensive
evaluation may be conducted on an inpatient psychiatric unit if needed or at
Bridgewater State Hospital if strict security is required.13 This is an effective
procedure in adult cases, saving both

"Currently, states around the country are working
to create developmentally appropriate laws to help
protect juveniles’ due process rights. … In the past
five years states as diverse as California, Michigan,
Maine, Connecticut, Ohio, Illinois, Michigan and Utah
have passed juvenile-specific competence legislation,
recognizing the unique needs of youth and the courts
in which their cases are heard."
addressing this topic legislatively. Few
states had juvenile-specific laws and
procedures, leading to confusion and
ambiguity. Applying adult procedures
and laws to juveniles was not working,
and the research on juveniles’ capacities to participate in their defense underscored the need for special care in
applying CST to juveniles. As this area
of research developed and JCST was
increasingly raised in juvenile proceedings states began to realize the necessity
of juvenile-specific legislation in this
area.
Currently, states around the country
are working to create developmentally
appropriate laws to help protect juveniles’ due process rights. In the past
decade, approximately 15 states have
developed JCST statutes. In the past
five years states as diverse as California,

time and money by avoiding inappropriate referrals for scarce inpatient bed
space. However, it is not a good fit for
the juvenile system where youth, whose
cases are complicated by developmental
and diagnostic issues, cannot easily be
seen in the short same-day time frame
created by the initial triage stage. Also,
as minimization of system contact when
possible results in better youth outcomes, avoiding inpatient stays when
possible is preferable. The proposed
legislation addresses this issue by specifically stating that youth should be
held in the least restrictive setting possible while undergoing evaluation and
shall not be held solely for the purpose
of conducting an evaluation.
Youth are incompetent for different
reasons than adults. Adults most commonly are incompetent due to mental

illness or intellectual disability. Frequently, incompetent adults are experiencing psychotic symptoms. Once treated with psychotropic medications, these
individuals are able to return to court.
Youth can also be incompetent due to
mental illness or intellectual disability;
however, these may differ in youth. For
example, a juvenile is more likely to be
incompetent due to different types of
mental illness (e.g., ADHD). Psychosis
generally does not develop until early
adulthood and thus is less likely to be
the underlying reason for incompetence
in youth.
Notably, youth also may be incompetent for a third reason that does not
apply to adults. Even in the absence of
mental illness or intellectual disability,
developmental immaturity may interfere with a youth’s competency. A juvenile may have difficulty with the abstract legal concepts one must grasp in
order to be able to make decisions about
his or her case. For example, youth tend
to struggle with concepts such as that of
a “right” or understanding their options
under a plea bargain because they have
not yet developed the ability to grasp
and use abstract ideas.14 Research demonstrates that compared to adults, youth
on average, are also more impulsive,
weigh risks differently and are more
short-sighted with a preference for immediate rewards, all of which can impact their ability to make decisions. Reiterating the Supreme Judicial Court’s
pronouncement in Abbot A., the proposed legislation recognizes developmental immaturity as potential underlying reason for a finding of incompetence15 providing clear guidance to the
courts and mental health professionals
conducting JCST evaluations. The proposed bill also states that a youth who
is incompetent due to developmental
immaturity shall not be hospitalized.
Psychiatric facilities are designed to
address the needs of those with mental
health diagnoses. The needs of youth
who are incompetent due to developmental immaturity alone could not be
met at such a facility. Thus, it would be
inappropriate to psychiatrically hospitalize a juvenile who was incompetent
for this reason alone.
Current Massachusetts law does not
specify the type of training required
of mental health professionals conducting JCST evaluations. Clinicians
who are trained with adult populations
are not necessarily qualified to evaluate juveniles. The proposed legislation
would rectify this by requiring evaluators in this area to have training in both
the clinical and forensic evaluation of
children and adolescents. Further, it addresses the issue of youth who are transferred. Nothing about transfer to adult
court automatically converts a juvenile’s characteristics and diagnostic and
clinical needs such that he or she should
be evaluated by a clinician who is only
trained in the evaluation of adults. The
juvenile-specific bill would require that
a clinician who is both child/adolescent
and forensically trained evaluate the
18
youth, even though their case

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

17

BAR NEWS

Membership meeting to be held on March 6
to approve bylaw amendments
On Feb. 11, the Massachusetts Bar Association’s (MBA) House of Delegates approved amendments to the association’s bylaws. Now, a membership vote is needed
in order for the amended bylaws to take effect. The proposed bylaws were drafted
and submitted by the Governance Committee, which is chaired by Walter A. Costello Jr., and includes Richard L. Campbell, John J. Carroll Jr., Warren F. Fitzgerald,
Mary Jo Kennedy, Michael E. Mone, Jr., Martha Rush O’Mara and James T. Van
Buren.
The proposed bylaw changes help to effectuate more member involvement in

the governance of the MBA by streamlining the advancement of officer positions
(by eliminating a vice president position) and enhancing the role of the Executive
Management Board in the nominating committee process. The MBA membership
will meet on Thursday, March 6, at Suffolk University Law School, 120 Tremont
St., Boston, prior to the MBA’s House of Delegates meeting, to vote on the proposed
amendments at 4 p.m.
To view the proposed bylaws and redlined version, visit www.massbar.org/
proposedbylaws. ■

The Massachusetts Bar Foundation, the
philanthropic partner of the Massachusetts
Bar Association, honored a “great friend”
and elected new officers at its 2014 Annual
Meeting. Held on Jan. 23 at the Social Law
Library in the John Adams Courthouse, the
meeting marked the beginning of the foundation’s 50th anniversary year.
Attorney Michael E. Mone of Esdaile,
Barrett, Jacobs and Mone was honored with
the 2014 Great Friend of Justice Award.
Mone, a nationally recognized civil trial
lawyer and a pioneer in the field of tort litigation, has been extraordinarily committed
to giving back to the legal profession and
the community throughout his career.
He has served as past president of the
American College of Trial Lawyers, the
Massachusetts Academy of Trial Attorneys
and the Massachusetts Bar Association.
Mone is also widely known for his significant pro bono efforts on behalf of people in
need, including Guantanamo Bay prison-

ers, which he represented together with his
son and fellow attorney Michael E. Mone
Jr.
“The work of the Mass. Bar Foundation is something that every lawyer in the
state can be proud of,” said Mone. “In Massachusetts, when you stand up for an unpopular cause, you’re fulfilling a tradition
that goes back to colonial times. I accept
this award not on behalf of myself, but on
behalf of every lawyer who does this kind
of work every day.”
The meeting also featured remarks
from grantee speaker Gail S. Packer, the
executive director of the Community Dispute Settlement Center in Cambridge, who
reflected upon the strong relationship her
organization has enjoyed with the foundation for more than 25 years. CDSC is a
private, nonprofit mediation and training
center committed to providing an alternative and affordable forum for resolving
conflict. The foundation has proudly supported CDSC’s court-based mediation services for nearly two decades. CDSC has

70 volunteer mediators and offers a parent
mediation program and mediation training.
New officers Robert J. Ambrogi, Vice
President Janet F. Aserkoff, Treasurer Harvey Weiner, Secretary Richard J. Gahn,
and Past President Jerry Cohen were each
elected for one-year terms ending in 2015.
Trustees were also elected for terms ending in 2017, including Aserkoff; Lewis C.
Eisenberg, Lawrence F. Farber, Hon. Robert G. Fields; and Weiner.
In remarks following his election, Ambrogi said that this anniversary year should
be one in which the foundation continues
to build on its 50 years of supporting access to justice. But acknowledging the
harsh economic realities facing civil legal
aid programs, he also hopes to see it take
a leading role in helping grantee organizations innovate the use technology to deliver
legal services.
“As we continue to have to do more
with less, it is incumbent on us to explore
all available alternatives,” he said. “Increasingly, technology is a critical compo-

More than 60 Massachusetts Bar Association members attended the MBA’s “A View from the Bench Series: Appellate Practice” program on Jan. 29.
The free seminar and reception featured a panel of judges discussing practice tips and recommendations for success in preparing for and arguing appeals before the United
States Court of Appeals for the First Circuit, the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court. ■
JUVENILE COMPETENCE TO STAND TRIAL

Continued from page 16

will be heard in criminal court.
The proposed law addresses the
findings of empirical studies evidencing higher risk of incompetence among
younger juveniles by shifting the burden to the commonwealth to prove
competence by a preponderance of the
evidence when a youth is a “young juvenile” 12 years old or younger. This is
not to say that such youth are automatically incompetent to stand trial. We must
still examine the youth’s functional capacities — what he or she can actually
do — with regard to competence-related
abilities. However, this provision sets up
a system in which those who are at the
highest risk of being incompetent are
provided some measure of additional
protection.
This recent state legislative trend
creating laws and procedures addressing
JCST, has shed light on another emerging issue — the lack of juvenile competence remediation services.16 Like utilizing adult criminal legislation in juvenile
courts was not workable, juvenile-specific CST remediation services are also
needed. Applying adult procedures and
service models to youth is at best likely ineffective and, at worst, potentially
harmful.
As noted above, juveniles and adults
are often found incompetent for different reasons. It follows that different

types of services or methods for addressing incompetence should be employed with youth. This is particularly
salient when it comes to developmental
immaturity since it is unique to juveniles. Because youth are less likely to
be incompetent due to serious mental
illness (e.g., schizophrenia), the types
of services they are likely to need are
more educationally-based and less focused on the treatment of serious mental
illness. Thus, the traditional psychiatrically focused models employed in the
adult system cannot simply be applied
to youth. Like other states Massachusetts will likely soon face the challenge
of addressing developmental differences
by applying juvenile-specific services in
order to effectively remediate youth.
1.

To assist states in the development of JCST
legislation, as part of the John D. and Catherine
T. MacArthur Foundation Models for Change
initiative, the National Youth Screening and
Assessment Project (NYSAP) released KIMBERLY
LARSON & THOMAS GRISSO, DEVELOPING STATUTES
FOR COMPETENCE TO STAND TRIAL IN JUVENILE
DELINQUENCY PROCEEDINGS: A GUIDE FOR
LAWMAKERS (2011). This guide is a free resource
available on the web at: www.modelsforchange.net/
publications/330.

11.

In the adult system, CST evaluations are conducted
by a licensed psychologist or psychiatrist whenever
the court finds that there is doubt regarding a
defendant’s competence. MASS. GEN. LAWS ch. 123
§ 15(a) (2014).

12.

MASS. GEN. LAWS ch. 123 §15(a) (2014) (“After
the examination described in paragraph (a), the
court may order that the person be hospitalized at
a facility or, if such person is a male and appears
to require strict security, at the Bridgewater state
hospital, for a period not to exceed twenty days for
observation and further examination, if the court has
reason to believe that such observation and further
examination are necessary in order to determine
whether mental illness or mental defect have so
affected a person that he is not competent to stand
trial....).

competent to stand trial…it may at any stage of
the proceedings after the return of an indictment
or the issuance of a criminal complaint against the
defendant, order an examination of such defendant
to be conducted by one or more qualified physicians
or one or more qualified psychologists. Whenever
practicable, examinations shall be conducted at
the court house or place of detention where the
person is being held. When an examination is
ordered, the court shall instruct the examining
physician or psychologist in the law for determining
mental competence to stand trial and criminal
responsibility.”)
14.

For example, juveniles may think that a “right”
is something that is granted to them by authority
figures and can be taken away, rather than
understanding it as an absolute that cannot
be revoked by adults. Similarly, research has
demonstrated that youths’ thinking is often much
more concrete than that of their adult-counterparts.
For example, we see differences between youth
and adults who are posed with a hypothetical plea
bargain in which they were given the choice of either
five years of probation or two years in detention.
Adults tend to grapple with issues related to their
odds of winning or losing considering factors such
as the strength of the evidence against them, their
level of confidence in their attorney, or whether
it was their first offense. Youth tended to look at
the decision in a concrete manner. Regardless of
whether the two years was associated with probation
or detention, they often pick the two years providing
reasons such as “two years is less than five years.”

15.

458 Mass. 24, 38 (2010) (“Juvenile Court
judges no doubt understand from their expertise
and experience” incompetence may be due to
“psychopathology, mental retardation, and/or
immaturity.”).

16.

In the adult world, the term “competence
restoration” is used because services are designed
to ameliorate a defendant’s issue such that he or
she regains competence. However, with youth we are
often creating an ability that was not there before.
Thus, different terminology is used and we refer to
the juvenile equivalent of competence services as
“remediation” or “competency attainment.”

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

19

LAWYERS AND JUDGE'S ‘WALKS TO THE
HILL’ FOR CIVIL LEGAL AID FUNDING

Continued from page 1

source for civil legal aid in Massachusetts, received a $13 million appropriation from the state this fiscal year.
An EJC press release noted that
“programs have been struggling to meet
demand as other funding sources have
dried up in recent years.” For example,
the Interest on Lawyers’ Trust Accounts
Program (IOLTA) is expected to experience an 85 percent drop in funding in fiscal yearl 2014 ($2.6 million) from where
it was in fiscal year 2008 ($17 million).
The EJC also noted that “MLAC has
cut grants to the 16 legal aid programs
it funds by 51 percent since fiscal year
2008.”
Chief Justice Roderick L. Ireland of
the Supreme Judicial Court joined his fellow members of the legal community in
calling on lawmakers to increase legal aid
funding. “We are here to help balance the
scales of justice,” he said.
The goal of this year’s Walk to the
Hill is to increase state funding for organizations that provide advice and representation to low-income residents facing
critical civil legal issues such as eviction
and foreclosure, child custody and support issues, denial of health care coverage, unemployment benefits appeals, domestic violence and elder abuse.
The speaking program also featured
Massachusetts Bar Association President
Douglas K. Sheff, and Boston Bar Association President Paul T. Dacier, who
both called on the legislature to increase
state funding for civil legal aid.
“Legal aid is not a lawyers’ issue, it’s
a fairness issue,” said Sheff. “The governor’s proposal of $1 million in increased

funding for MLAC is a step in the right
direction, but it’s still inadequate to meet
the needs in our commonwealth. Without
the full $17 million for MLAC, thousands
of our citizens could face life-changing
hardships involving their housing, their
jobs and their health, among others, without the vital lifeline that legal aid provides.”
Malden resident Charlene Julce also

spoke about how legal aid helped restore
her dream of home ownership after she
was the victim of a predatory loan and an
illegal foreclosure action.
“There is simply no way my family
and I could have figured out how to keep
our home without the help of Greater
Boston Legal Services,” said Julce. “The
notices from our bank were complicated
and we didn’t even know what our options

PHOTO BY JEFF THIEBAUTH

were for help. My family might be facing
homelessness today if it weren’t for the
civil legal aid assistance we received.”
The walk was co-sponsored by the
Equal Justice Coalition, Massachusetts
Bar Association, Boston Bar Association and many local and specialty bar
associations. Attorneys from several
Boston-area law firms and organizations
participated. ■

MEMBERSHIP
A DVA NTAGE
MBA SuStAInIng MeMBer
I give more
because...
“I deeply believe that in order to
be a successful lawyer you must
represent your clients and your
profession. To accomplish this,
you must continue your education, with regards to the law
and procedure. You must also be
aware of legislation that might
affect your client’s rights. The
Massachusetts Bar Association
provides me the opportunity to
accomplish these goals. We all
need to be involved for the good
of our clients and our profession.”

The Mass. Bar Association offered its first “Practicing with Professionalism” Course on Thursday, Jan. 23, at UMass
Boston. See/share photos and descriptions on Twitter using #MassBarPWP.

Bring your business cards and join us for an evening of
networking and fun at the MBA. Your presence will help
make this a successful and beneficial night for our newest
members. Cocktail Reception to follow.

SuStaining memberS are those MBA members who demonstrate a high level of commitment to both the
association and the profession. Visit www.massbar.org/sustaining to become a sustaining member today.

Wednesday, March 26
5:30-7:30pm
MBA, 20 West St.
Boston

For more information and to register visit massbar.org/networking

you Belong here*

MASSACHUSETTS LAWYERS JOURNAL | FEBRUARY 2014

20

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